Orentlicher on the Rise and Fall of Presumed Consent to Organ Donation

As the gap between the need for organ transplants and the supply of organs has increasingly widened, many scholars have urged the adoption of "presumed consent" to organ donation. Under a presumed consent regime, the state would assume that a person agreed to organ donation after death unless the person (or a family member) had lodged an objection to posthumous organ donation. Such an assumption would reverse existing law-currently, it is generally the case that organ donation requires actual consent from the donor or a family member of the donor.

For some forty years in a little-known experiment, the United States tried presumed consent on a limited basis. In many states, when dead persons came under the custody of coroners or medical examiners, those officials could authorize cornea donation-or even organ donation-in the absence of a known objection to the donation by the decedent or a family member. However, in 2006, the Revised Uniform Anatomical Gift Act recommended against presumed consent, and most states have followed the lead of the Revised Act.

This article reviews the history of presumed consent in the United States and concludes that presumed consent failed because it could not overcome the major reason why people do not become organ donors after death-the refusal of family members to give consent to donation. To the extent that presumed consent allowed family members to overcome the presumption and withhold consent, it did not address the reasons why family members say no. To the extent that professionals tried to preserve the presumption by bypassing families, they validated fears that doctors will be too quick to take organs from dead persons who would not have wanted their organs removed. The United States' history with presumed consent indicates that other proposed reforms will be needed to address the shortage of organs for transplantation.